I. OSHA and Historical Actions
The Occupational Safety and Health (OSH) Act was established to ensure that employees have safe environments to do their work. The Occupational Safety and Health Administration (OSHA) is the federal agency established to enforce the occupational and safety laws.
OSHA conducts inspections and investigates complaints of workplace safety violations of the OSH laws. Historically, OSHA has taken action on violations of OSHA standards in the form of fines and administrative actions, and that is still the function of OSHA. Until recently, any violation of an OSHA standard that was referred for criminal prosecution was usually a misdemeanor. These were often allegations of falsifying documents or lying to OSHA officials. Now, OSHA criminal prosecutions are more common, and criminal investigators and prosecutors are more aggressive toward OSHA violations.
II. Recent Changes
Federal criminal prosecutions of OSHA violations have heightened. Traditionally, a criminal OSHA case was based on misdemeanor allegations at worst, yet the U.S. Department of Justice is taking workplace safety violations more seriously. More violations are being referred for criminal prosecution through the Department of Justice and its federal prosecutor’s offices, the U.S. Attorney’s Offices. Some are referred to state prosecutors as well.
The U.S. Department of Justice has moved OSHA criminal cases to the DOJ’s Environmental Crimes Section for more aggressive prosecutions. The reason seems to be that DOJ and OSHA believe that if there are workplace safety violations, then there are likely to be environmental law violations too.
Another recent change within the DOJ that signals more criminal prosecutions of OSHA violations is the DOJ and Department of Labor partnership agreement. The DOJ and Department of Labor have agreed to pool resources to prosecute violations of labor and environment statutes.
III. OSHA Violations and Administrative Actions
Violations of OSHA standards often addressed in administrative actions that result in fines to the subject company. These can be categorized as Serious Violations, Willful Violations, and Repeat Violations.
The basis’ for these violations can often include failure to protect or take action regarding: Fall Protection, Hazard Communication, Respiratory Protection, Machine Guarding, and Electrical issues.
IV. Common Criminal Violations
Chronic violations and employers who continually reject worker safety are more likely to be prosecuted than violators without a history. Also, criminal prosecution now should be more likely if there are both safety and environmental law violations.
Significantly, a company / employer can count on a criminal investigation if there is an OSHA violation that allegedly caused the death of an employee.
Common criminal investigations / cases are based upon:
- Falsifying OSHA documents.
- Disclosing Advance Notice of an OSHA Inspection.
- Perjury in an OSHA Proceeding / Hearing.
- Environmental Statutes Violations re Major Events.
OSHA violations that assuredly will lead to a criminal investigations and maybe criminal charges, are those that contribute to the death of an employee. The law used for this criminal prosecution is found at 29 U.S. Code, Section 666(e), Willful Violations of an OSHA Regulation Causing Death. Essentially, the U.S. Attorney or DOJ prosecutors would have to prove:
- Violation of an OSHA Standard;
- The Employer Committed the Violation;
- The Violation of the Standard was the Direct Cause of the Employee’s Death; and
- Violation Was Committed Willfully.
Note that an “employer” is a person(s) who exerts significant control, and corporate officers and directors may be considered employers for the purpose of these laws.
If you or your company are under criminal investigation for OSHA violations, regardless of whether there is an employee death, you need experienced federal counsel. Call federal defense attorney John Teakell, who will guide you through the investigation and work to stop any criminal charges.